UK Accession to Lugano Convention: Commission Backtracks from Approval
Oft expectation fails, and most oft there
Where most it promises…
William Shakespeare
Yesterday has been an emotional rollercoaster for those interested in European judicial cooperation. After initial reports in the Financial Times about an impending recommendation in favour of the UK’s accession to the Lugano Convention, the journal later reported that the Commission has (again) changed its mind. It now opposes the UK’s application to join the Convention.
Apparently, the decision was made behind closed doors. The only formal ground reported is the missing membership of the post-Brexit UK in either the European Economic Area (EEA) or the European Free Trade Association (EFTA), to which all other members of the Lugano Convention are parties. This is however a specious argument because judicial cooperation has a much further reach than economic cooperation and builds on other criteria, such as trust in the quality of the other state’s judiciary (see Matthias Lehmann and Eva Lein, ‘L’espace de justice à la carte? La coopèration judiciaire en Europe à géométrie variable et à plusieurs vitesses’, in: Marie-Elodie Ancel et al. (eds.), Le Droit à L’Èpreuve des Siècles et des Frontières – Mélanges en l’honneur du Professeur Bertrand Ancel, Paris 2018, p. 1093 – 1120).
It is to be hoped that this is not the end of the story. The Commission has merely issued a recommendation; the final decision lies with the European Parliament and the Council. Even though especially France seems to be very reserved about the British accession, it remains to be seen how these bodies will act. Moreover, the Lugano Convention’s Art 72(3) only says that the signatories “shall endeavour” to give their consent within one year after an application to join, without setting any hard deadline. The EU thus has ample time to make up its mind. Should it reject the UK’s application, the latter is free to file it again under more favourable political conditions.
The above quote, by the way, is from Shakespeare’s play “All’s Well That Ends Well”. Let us hope that this will also be true for the UK and the Lugano Convention.
It seems the French are the most determined opponents. While the reasons are most likely political, this is somewhat ironical, given that, if the UK does not join the Lugano Convention, French courts will enforce most English judgments, while English courts will enforce French judgments in much more limited circumstances.
Interesting comment, Gilles. Could you please elaborate on the French and English position?
In short, the assessment of the jurisdiction of the foreign court is very conservative in the UK, while it is very liberal in France.
I am not quite sure whether the Commission really „backtracked“ – I rather believe that the FT got it wrong, when it first reported that the UK had won Brussels‘ backing, and had to retract its earlier reporting a day later. All other media reports were consistent, as was the FT‘s prior reporting, on the Commission‘s opposition to the UK‘s application.
Of course nobody can be sure except those who participated in the meeting. What about the FT report on technical analysis carried out by the Commission that the UK’s accession would result in a net-benefit? I can hardly imagine that this was invented by the FT.